JUNE ELIZABETH ROUNDS RHEAUME, Complainant

STATE OF WISCONSIN, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ and it adopts that decision as its own.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed May 23, 2008
roundju . rsd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

This case arises as a result of complainant June Rounds-Rheaume's complaint alleging that she was discriminated against by the respondent University of Wisconsin-Madison Laboratory of Hygiene because of her age, sex and because she opposed discrimination in the workplace. The complainant first attempted to file this complaint with the Equal Rights Division on October 6, 2006. However, it was not until October 18, 2006, when the complainant submitted her third complaint, that the Division ultimately accepted her complaint. The complainant alleged harassment and discrimination on the basis of age and sex in her terms and conditions of employment from 1999 until June 2004 (when she resigned), retaliation during her employment, constructive termination of her employment and continued retaliation, the most recent date of which was "October 4, 2006", ⁽¹⁾  when she was asked by a prospective employer for her former supervisor's name, phone number and any disciplinary actions against her.

The respondent filed an answer to the complainant's complaint with the ERD on November 29, 2006. Included in its answer was a motion to dismiss the matter "based upon the fact that the Complainant has not alleged any adverse employment action within the 300-day statute of limitations contained in s. 111.39(1), Wis. Stats."

According to the equal rights officer's (ERO's) Investigator's Log, in a call to the Division on December 28, 2006, the complainant claimed that the respondent was continuing to retaliate against her and the ERO sent a new complaint form to the complainant. Apparently the complainant has filed a new complaint of discrimination with the Division regarding another reference the respondent provided to a prospective employer.

No action was taken on the complainant's October 18, 2006 complaint until August 2007, when an ERO requested that she respond to some additional questions.

Following the complainant's submitted response to the questions, on November 6, 2007, a second ERO issued a Preliminary Determination and Order (PLO) dismissing the complainant's October 18, 2006 complaint on the grounds that it did not meet the timeliness requirements under the WFEL.

The complainant filed a timely appeal from the Preliminary Determination and Order.

In a decision issued on January 11, 2008, the ALJ affirmed the PLO issued by the investigator and dismissed the complainant's complaint. The ALJ cited three reasons for affirming the dismissal of the complaint: (1) The complainant has failed to provide any valid legal basis for tolling the statute of limitations; (2) the complainant's claims of retaliation are without basis because the complainant has failed to show that she notified anyone from the respondent that she believed she had been the victim of employment discrimination covered under the WFEA prior to filing her complaint in October of 2006; and (3) the complainant's claims of retaliation are without any basis in law in that her claim is that she is presently feeling the effects of the prior employment discrimination that occurred more than two years ago, and this is not an actionable claim under the WFEA.

With respect to the complainant's allegations of sex and age discrimination during her employment with the respondent from 1999 until June of 2004, the ALJ stated:

...the Complainant initially filed a complaint on October 6, 2006 indicating that the reason for the delay was because she did not fall within any of the protected classes covered by the WFEA. The Complainant also claimed in the October 6, 2006 complaint that the reason she did not file a complaint was because she was concerned about possible retaliation in being given [negative] references if she filed a complaint. Subsequently, the Complainant changed her reasons for not filing a complaint. The Complainant alleged that she was unable to file a complaint because of a number of situations that occurred in her life, including, moving to Florida, a hurricane, illness, going to school, and looking for a job. While the Administrative Law Judge understands that the Complainant may have faced difficulties in her life after resigning her employment with the Respondent in June of 2004, the events that occurred are the type of events that occur in any person's life and do not provide a legal basis for tolling the statute of limitations to allow the Complainant to file a complaint beyond the 300-day statute of limitations. ⁽²⁾

Further, with respect to her claim of retaliation during her employment, the ALJ stated that the complainant's many submissions filed with the Division after her October 6 complaint show that "she had now come to see that the Respondent's adverse actions toward her during her employment were based on her age and sex." The ALJ then went on to state as follows:

Since the Complainant's submissions show that the Complainant did not believe at the time of her employment with the Respondent that any adverse employment actions taken against her by the Respondent during her employment were based on her age and sex, the Administrative Law Judge does not consider the Complainant's claims of retaliation during her employment to be covered by the WFEA....(S)ince the Complainant did not believe until after her employment had ended that her age and sex were the basis of the alleged adverse actions, the Complainant could not have complained to the Respondent during her employment that she was being treated adversely because of her age and sex. Therefore, the Administrative Law Judge determines that the Respondent's actions toward the Complainant could not have been motivated by any animus towards the Complainant for opposing employment discrimination. ⁽³⁾

Finally, with respect to the complainant's allegation of retaliation as late as October 5, 2006, and that it is continuing, the ALJ noted that this allegation of retaliation is based on the complainant's belief that the discrimination that she suffered during her employment with the respondent is affecting her present ability to get a job because every time she files an application for employment she must list the respondent as a reference and because she must disclose discipline given to her by the respondent which she believes to have been discriminatory. The ALJ then stated as follows:

Essentially, the Complainant is alleging that she is still the victim of discrimination in the present because she is affected by the employment discrimination that she alleges occurred more than two years ago. This theory of continuing violation was rejected by the United States Supreme Court in United Airlines v. Evans, 431 U.S. 553, 558 (1977). The Labor and Industry Review Commission has followed the reasoning in United Airlines v. Evans. Eller v. CHR Hanson, Inc. (LIRC, 1/31/02). Essentially, the Commission has determined that a complainant may not claim that the complainant is a current victim of discrimination because the complainant is being adversely affected by an allegedly discriminatory action that occurred several years ago. Since the only adverse action the Complainant in this matter points to that occurred within the 300-day statute of limitations is the present effects of having to disclose her prior employment with the Respondent and any prior discipline the Respondent may have given her, the Administrative Law Judge determines that the Complainant has not stated a timely claim of discrimination or retaliation.

The commission agrees with the ALJ's decision and therefore affirms the ALJ's decision for the reasons stated by the ALJ.

On appeal from the ALJ's decision, with respect to not having filed a timely complaint of discrimination, the complainant argues that the three disciplinary actions taken against her [in March or April of 2004] "were hidden in employer action against me". She argues, "They expect me to identify hidden discrimination, retaliation, and motive by them right away. Why do they think that's fair?" The complainant's arguments fail. The statute of limitations begins to run when the facts that would support a charge of discrimination are apparent or would be apparent to a person with a reasonably prudent regard for his or her rights. See, e.g., Washington v. United Water Service (LIRC, 08/15/03); Lange v. Federal Express (LIRC, 02/22/93); Oehlke v. Moore-O-Matic (LIRC 07/26/88). The complainant's admission in her October 18, 2006 correspondence (attached to her October 18, 2006 complaint) that she had requested a discrimination complaint form from the Division in March of 2004 and another discrimination form in the summer of 2004 clearly indicates that she had formed a belief that she had been discriminated against in 2004.

The complainant's appeal further includes a discussion regarding a number of other matters, but there is nothing stated by her that provides any reason to conclude that a different result should be reached regarding the dismissal of her October 18, 2006 discrimination complaint.

Finally, in correspondence sent to the commission following her appeal of the ALJ's decision, the complainant makes references to her "second case". The complainant's "second case" is apparently the one that involves a second discrimination complaint that she has against the respondent. That case/complaint is not before the commission.

cc: Attorney John C. Dowling

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(1)( Back ) In the second complaint submitted by the complainant on October 16, 2006, she cites "October 5, 2006" as the most recent date of discrimination.

(2)( Back ) The commission notes that in the October 6, 2006 complaint the complainant cites as a further reason for not having filed her complaint earlier that "she felt discouraged from proceeding with a complaint." The complainant asserted that one reason why she felt discouraged was that "When I called the equal rights division the person told me this dept was for construction sites." As a further reason, the complainant asserted that "Another person told me harassment or discrimination was extremely difficult to prove." There is no indication as to when the complainant had contacted the ERD and been told "this department was for construction sites." In any case, an assertion of discouragement for filing a discrimination complaint for this reason is unavailing. Further, the complaint does not make clear who "another person" was that had told her harassment or discrimination was extremely difficult to prove. However, there is no reason to believe that it was anyone from the ERD because despite the submission of two new complaints and being given subsequent opportunities to explain why her complaint was not filed earlier, the complainant never claimed that she was discouraged from proceeding with a complaint because someone at the ERD had told her that harassment or discrimination was extremely difficult to prove.

(3)( Back ) Alternatively, even if it could be argued that the complainant had complained during her employment about harassment and discrimination because of her age or sex, her October 18, 2006 complaint claims of retaliation during her employment fail because they are untimely.

uploaded 2008/05/27